Authorizing Someone To Accept Service Is Not Enough To Compel Trial Attendance

Target National Bank v. Rocha
(Sup. Ct. of Santa Clara, App. Div.), filed May 22, 2013

Target National Bank sued Lucy Rocha for breach of contract and common counts.

Based on Code of Civil Procedure section 98, Target filed a declaration in lieu of live testimony at trial. After arguments by the parties, the trial court admitted the declaration into evidence. No other evidence was presented at trial.

Based on the declaration, the trial court entered judgment for Target in the amount of $7,788.30.

Rocha appealed. She asserted that the trial court erred in admitting the declaration.

The Appellate Division of the Superior Court reversed. It concluded that Target had not complied with the requirements for admission of the declaration.

Section 98 provides, in relevant part:

A party may, in lieu of presenting direct testimony, offer the prepared testimony of relevant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

(a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

(b) The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

Target’s problem was that its declarant was not available for service of process. Although she provided an address within 150 miles and had authorized someone there to accept service of a subpoena on her behalf, that was insufficient. According to the court, authorizing someone to accept service of a subpoena is not sufficient to meet the requirement of being available for the service of the subpoena.